What Do O.J. Simpson and Attorney General Michael Mukasey Have in Common?

2. [There is no evidence those involved. . . did what they did] “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful. In those circumstances, there is no occasion to consider prosecution. . .”

The first statement was made by O.J. Simpson in pleading for leniency as he was being sentenced for charges that included armed robbery and kidnapping in the course of attempting to recover sports memorabilia that he believed was rightfully his. The second statement was made by Attorney General Michael Mukasey in response to a question about whether pardons were being considered for Bush administration officials who were involved in developing counterterrorism policies.

Comparing these two statements may, at first glance, seem like a stretch. After all, the underlying actions they were referring to – attempting to recover allegedly stolen personal property at gunpoint and defending the national security of the United States – are vastly different in character. However, the two statements offer remarkably similar justifications for criminal, or potentially criminal, actions.

In Simpson’s case, he was chastised by Judge Jackie Glass of Clark County District Court for arguing, in essence, that because he believed he was not doing anything wrong, therefore no crime took place. Yet that is exactly the reasoning advanced by Attorney General Mukasey regarding potentially criminal acts in the “war on terror.” No pardons need be considered, he argues, because there were no violations of law. This is because those who developed policies on the treatment of terror suspects believed they were not doing anything wrong, but rather were acting out of the purest of motives.

What extraordinary reasoning this is from the chief law enforcement officer of the United States! Mr. Mukasey’s argument, like his refusal to condemn waterboarding, is a disgraceful attempt to shield from further investigation and prosecution those who justified and authorized illegal acts. It is particularly outrageous because the Attorney General is more responsible than any other single person for upholding the rule of law in the United States. As Amnesty International noted in commenting on Mr. Mukasey’s statement, ignorance of the law and defense of national security are no excuse for criminal behavior. How very sad that our Attorney General has yet to understand that.

About Gay Gardner

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14 thoughts on “What Do O.J. Simpson and Attorney General Michael Mukasey Have in Common?”

The US Department of Justice is the nation's prosecutor, but it is also part of the executive branch of government responsible for giving legal advice to the executive. A paradox is created when it is expected to prosecute the same entity it gives legal advice to, especially when it is asked to prosecute for a crime it advised was not a crime! This paradox places the executive above the law. What division of power needs to be put in place that will rectify this problem?

The US Department of Justice is the nation’s prosecutor, but it is also part of the executive branch of government responsible for giving legal advice to the executive. A paradox is created when it is expected to prosecute the same entity it gives legal advice to, especially when it is asked to prosecute for a crime it advised was not a crime! This paradox places the executive above the law. What division of power needs to be put in place that will rectify this problem?

It's a good question, Mary Ellen. I don't know the answer. What do you think? I'm not sure what you mean by a division of power that needs to be put in place. I would think a new Attorney General (e.g., Mukasey) could deternine that advice given by a predecessor (Gonzales) was clearly erroneous and that he (Mukasey) would not be bound by it. Don't you think any Attorney General has a professional and moral obligation to rescind clearly erroneous legal opinions issued by a predecessor?

It’s a good question, Mary Ellen. I don’t know the answer. What do you think? I’m not sure what you mean by a division of power that needs to be put in place. I would think a new Attorney General (e.g., Mukasey) could deternine that advice given by a predecessor (Gonzales) was clearly erroneous and that he (Mukasey) would not be bound by it. Don’t you think any Attorney General has a professional and moral obligation to rescind clearly erroneous legal opinions issued by a predecessor?

I think the present situation creates an inherent conflict of interest for the Attorney General. Who is his client? The individual(s) he advises or the United States of America-and therefore his country's overall best interests? Perhaps Congress or the Judiciary should be given the power to rescind the appointment
of the Attorney General if they deem his behavior not to comply with the law.
International law was violated here and the people involved should be held accountable. If the Attorney General is not prepared to hold those people accountable, he should be held accountable. If all these people get away scot free for torturing people, what is there to stop other people from doing this in the future?

"What division of power needs to be put in place that will rectify this problem?" was a poor way of asking, "how can executive power be checked through the use of our system of justice?" Gay's question of a succeeding Attorney General being obligated to rescind previous opinions (of course!) and Margaret's suggestion that Congress or the Judiciary be given the power to fire the Attorney General (wouldn't that create an imbalance of power in the opposite direction?) does not address the conflict of interest inherent in the position of the Attorney General. Congress's power to impeach is only a partial answer as Congress does not have the power to prosecute.

Is this a fatal flaw in the constitution? Thomas Jefferson said, "Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny."
When government is incapable or unwilling to hold officials accountable for crimes they have committed, is this a form of tyranny? It is certainly a corruption. An embedded corruption that does not change no matter who is elected to the highest office. If our government is so corrupted, I believe our constitution calls for the people to exercise their power and overthrow the government, dismantle it and build a better one. Jefferson also said, "Every generation needs a new revolution."

I think the present situation creates an inherent conflict of interest for the Attorney General. Who is his client? The individual(s) he advises or the United States of America-and therefore his country’s overall best interests? Perhaps Congress or the Judiciary should be given the power to rescind the appointment
of the Attorney General if they deem his behavior not to comply with the law.
International law was violated here and the people involved should be held accountable. If the Attorney General is not prepared to hold those people accountable, he should be held accountable. If all these people get away scot free for torturing people, what is there to stop other people from doing this in the future?

“What division of power needs to be put in place that will rectify this problem?” was a poor way of asking, “how can executive power be checked through the use of our system of justice?” Gay’s question of a succeeding Attorney General being obligated to rescind previous opinions (of course!) and Margaret’s suggestion that Congress or the Judiciary be given the power to fire the Attorney General (wouldn’t that create an imbalance of power in the opposite direction?) does not address the conflict of interest inherent in the position of the Attorney General. Congress’s power to impeach is only a partial answer as Congress does not have the power to prosecute.

Is this a fatal flaw in the constitution? Thomas Jefferson said, “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
When government is incapable or unwilling to hold officials accountable for crimes they have committed, is this a form of tyranny? It is certainly a corruption. An embedded corruption that does not change no matter who is elected to the highest office. If our government is so corrupted, I believe our constitution calls for the people to exercise their power and overthrow the government, dismantle it and build a better one. Jefferson also said, “Every generation needs a new revolution.”

I happened to be reading Philippe Sands' book "Torture Team" recently, and much of his book seems pertinent here. In chapter 23 he writes: "However, all lawyers, even political appointees, work within two sets of constraints. The first is the ethical rules of professional responsibility that bind all lawyers. Since June 2004, when the legal advices and the Haynes memo were made public, there has been a lively debate in the United States on whether the lawyers who drafted the various legal advices on interrogation complied with their ethical responsibilities. At the heart of the debate were requirements like those of the District of Columbia Rules of Professional Conduct, which set out the parameters for lawyers in the government service who gave legal advice. Two of these rules were particularly relevant. Rule 1.4(b) states that: 'A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.' And Rule 2.1 requires a lawyer to render 'candid advice.' This would not prevent a client from consulting a lawyer to confirm his own preconceptions rather than to seek genuine advice, and the lawyer could be tempted to play sycophant to such a client. However, Rule 2.1 prohibits such an approach; the lawyer has to exercise judgment that is 'independent and professional.'"

I'm not a lawyer, but it doesn't seem to me that there is a great problem with an inherent conflict of interest for the Attorney General. The Attorney General is not the President's personal lawyer; he or she is the chief law enforcement officer of the United States and his/her principal duty is to the people of the United States and to uphold the laws of the United States. If anything, the ethical obligation of every lawyer to educate his or her client on what the law does and does not permit is, I would argue, even greater for the Attorney General than for other lawyers.

I happened to be reading Philippe Sands’ book “Torture Team” recently, and much of his book seems pertinent here. In chapter 23 he writes: “However, all lawyers, even political appointees, work within two sets of constraints. The first is the ethical rules of professional responsibility that bind all lawyers. Since June 2004, when the legal advices and the Haynes memo were made public, there has been a lively debate in the United States on whether the lawyers who drafted the various legal advices on interrogation complied with their ethical responsibilities. At the heart of the debate were requirements like those of the District of Columbia Rules of Professional Conduct, which set out the parameters for lawyers in the government service who gave legal advice. Two of these rules were particularly relevant. Rule 1.4(b) states that: ‘A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’ And Rule 2.1 requires a lawyer to render ‘candid advice.’ This would not prevent a client from consulting a lawyer to confirm his own preconceptions rather than to seek genuine advice, and the lawyer could be tempted to play sycophant to such a client. However, Rule 2.1 prohibits such an approach; the lawyer has to exercise judgment that is ‘independent and professional.'”

I’m not a lawyer, but it doesn’t seem to me that there is a great problem with an inherent conflict of interest for the Attorney General. The Attorney General is not the President’s personal lawyer; he or she is the chief law enforcement officer of the United States and his/her principal duty is to the people of the United States and to uphold the laws of the United States. If anything, the ethical obligation of every lawyer to educate his or her client on what the law does and does not permit is, I would argue, even greater for the Attorney General than for other lawyers.

I wonder if the Columbia Rules of Professional Conduct apply when the President of the United States is the Attorney General's boss, not his client?

I agree with you, Gay, the Attorney General'd first duty is to uphold Federal law, but I can see how certain AGs might think their first duty is loyalty to the President. It's a matter of moral priority; many people rank loyalty and obedience above fairness and not hurting others. I bet that everyone picked for posts within the Bush administration were evaluated for their sense of loyalty as much as for their neo-con ideology. The two sort of go hand-in-hand, don't they?

The creators of the constitution really tried to make the United States a government of laws, not men. It's ironic, but as the Bush administration has proved, there is nothing that can ensure that noble sentiment but the men in power.

I wonder if the Columbia Rules of Professional Conduct apply when the President of the United States is the Attorney General’s boss, not his client?

I agree with you, Gay, the Attorney General’d first duty is to uphold Federal law, but I can see how certain AGs might think their first duty is loyalty to the President. It’s a matter of moral priority; many people rank loyalty and obedience above fairness and not hurting others. I bet that everyone picked for posts within the Bush administration were evaluated for their sense of loyalty as much as for their neo-con ideology. The two sort of go hand-in-hand, don’t they?

The creators of the constitution really tried to make the United States a government of laws, not men. It’s ironic, but as the Bush administration has proved, there is nothing that can ensure that noble sentiment but the men in power.